In Re Estate of Rice

{¶ 16} I respectfully dissent. In his first and second assignments of error, appellant argues that the trial court erred in granting appellees' motion to remove him as executor of his mother's estate. Specifically, appellant avers that the trial court used the wrong standard when it granted appellees' motion. Appellant further argues that the trial court abused its discretion because its decision is against the manifest weight of the evidence.

{¶ 17} Although appellant argues that the decision of the trial court is against the manifest weight of the evidence, the removal of an executor is within the sound discretion of the probate court, and a reviewing court will not reverse the trial court's order unless it appears that the lower court abused its discretion. In re Estate of Jarvis (1980), 67 Ohio App. 2d 94,97, 21 O.O.3d 411, 425 N.E.2d 939. An abuse of discretion connotes more than an error of law or judgment; rather, it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. In re Estate of Clapsaddle (1992),79 Ohio App. 3d 747, 755, 607 N.E.2d 1148.

{¶ 18} Both R.C. 2109.24 and 2113.18 provide the statutory basis for removing a fiduciary or executor.

{¶ 19} Under R.C. 2109.24, "[t]he court may remove any such fiduciary * * * for habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the interest of the trust demands it, or for any other cause authorized by law."

{¶ 20} R.C. 2113.18(A) states, "The probate court may remove any executor or administrator if there are unsettled claims existing between him and the estate, which the court thinks may be the subject of controversy or litigation between him and the estate or persons interested therein."

{¶ 21} In the present matter, the trial court found that there is an "obvious conflict of interest among [appellant], the estate and the beneficiaries." The trial court based its finding in part on the fact that there was an outstanding lawsuit against appellant and the estate regarding the sale of his mother's Wadsworth home. The proceeds from the real estate sale constitute the bulk of the estate. Although appellant was personally sued, he misrepresented in a letter to his brothers that the estate would be solely liable for any judgment in the pending lawsuit.

{¶ 22} The court also noted that appellant has a prior felony conviction for theft and that he arranged for his fiancé rather than himself to be named as a beneficiary in his mother's will in order to prevent creditors from attaching his bequest.

{¶ 23} Furthermore, the trial court noted that appellant's brothers do not trust him to act fairly on behalf of the estate and their interests. The trial court went on to find that there is "great hostility and distrust among the parties."

{¶ 24} Appellant argues that the trial court relied on R.C.2113.05 rather than 2109.24 in deciding to grant appellees' motion to remove him as executor of his mother's estate. Although the trial court did not specifically cite either R.C. 2109.24 or2113.18, the findings of the trial court make it clear that it considered the proper factors when deciding to grant appellees' motion to remove appellant as executor of his mother's estate.Pio v. Ramsier (1993), 88 Ohio App. 3d 133, 135-136,623 N.E.2d 174. After reviewing the record, I cannot find that the trial court abused its discretion or that its attitude was unreasonable, arbitrary, or unconscionable. I would overrule appellant's first and second assignments of error.

{¶ 25} In his third assignment of error, appellant argues that the trial court erred in appointing an executor because it failed to comply with R.C. 2113.06.

{¶ 26} In its journal entry and order dated November 25, 2003, the trial court granted appellees' motion to remove appellant as executor of his mother's estate and appointed Attorney Kevin W. Dunn, a disinterested third party, as administrator with will annexed. Due to a conflict on Mr. Dunn's part, the trial court replaced Dunn with Attorney Mary Jo Morse as administrator with will annexed.

{¶ 27} R.C. 2113.06 sets forth the statutory order of preference for the appointment of an executor:

Administration of the estate of an intestate shall be granted to persons mentioned in this section, in the following order:

(A) To the surviving spouse of the deceased, if resident of the state;

(B) To one of the next of kin of the deceased, resident of the state.

If the persons entitled to administer the estate fail to take or renounce administration voluntarily, they shall be cited by the probate court for that purpose.

If there are no persons entitled to administration, or if they are for any reason unsuitable for the discharge of the trust, or if without sufficient cause they neglect to apply within a reasonable time for the administration of the estate, their right to priority shall be lost, and the court shall commit the administration to some suitable person who is a resident of the state, or to the attorney general or the attorney general's designee, if the department of job and family services is seeking to recover medical assistance from the deceased pursuant to section 5111.11 or 5111.111 of the Revised Code. Such person may be a creditor of the estate.

This section applies to the appointment of an administrator de bonis non.

{¶ 28} R.C. 2113.06 does not expressly authorize anyone to file objections to the appointment of an executor. "Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends on whether the party has alleged * * * a `personal stake in the outcome of the controversy.'" Middletown v. Ferguson (1986),25 Ohio St. 3d 71, 75, 25 OBR 125, 495 N.E.2d 380, quoting Sierra Club v.Morton (1972), 405 U.S. 727, 731-732, 92 S. Ct. 1361,31 L. Ed. 2d 636. To have standing, a person must demonstrate an immediate, pecuniary interest in the subject matter of the litigation. A future, contingent or speculative interest is not enough.Tiemann v. Univ. of Cincinnati (1998), 127 Ohio App. 3d 312,325, 712 N.E.2d 1258, citing Los Angeles v. Lyons (1983),461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675.

{¶ 29} In the present matter, appellant was not a beneficiary under the will. Therefore, he did not have a personal stake in who was appointed executor of his mother's estate after his removal. Appellant does not have standing to challenge the trial court's appointment of Mary Jo Morse as administrator with will annexed. I would overrule appellant's third assignment of error.

{¶ 30} For the foregoing reasons, I would affirm the judgment of the trial court.